Opinion
04-27-2016
PEOPLE of State of New York, respondent, v. Juan PEREZ, appellant.
Seymour W. James, Jr., New York, N.Y. (Anita Aboagye–Agyeman of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Anita Aboagye–Agyeman of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Julian Joiris of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the Supreme Court, Kings County (Riviezzo, J.), dated August 29, 2013, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
At a hearing pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), the defendant was assessed 145 points, 35 points in excess of what is required to designate him presumptively a level three sex offender.
The defendant challenges the assessment of 15 points against him for a history of drug and/or alcohol abuse, and 15 points for failure to accept responsibility. The exclusion of those points would not alter his presumptive risk level (see People v. Boykin, 102 A.D.3d 937, 958 N.Y.S.2d 496).
In any event, the assessment of points for a history of drug and/or alcohol abuse was based upon the defendant's admissions (see People v. Murphy, 68 A.D.3d 832, 833, 890 N.Y.S.2d 605) and the fact that he was treated for alcohol abuse while in prison (see People v. Snyder, 133 A.D.3d 1052, 1053, 19 N.Y.S.3d 631). Further, the defendant's refusal to engage in sex offender treatment warranted the assessment of 15 points against him for failure to accept responsibility (see People v. Pinckney, 129 A.D.3d 1048, 1049, 11 N.Y.S.3d 676).
A downward departure from a defendant's presumptive risk level may be warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise taken into account when assessing points (see People v. Guzman, 110 A.D.3d 863, 973 N.Y.S.2d 310). The defendant's lack of a disciplinary history while in prison was taken into account when assessing points, and therefore is not a ground for a downward departure from his presumptive risk level (see People v. Torres, 124 A.D.3d 744, 745, 998 N.Y.S.2d 464). Further, the defendant's age was not a ground for a downward departure (see People v. Shelton, 126 A.D.3d 959, 960, 6 N.Y.S.3d 121).
The defendant's remaining contentions are without merit. Accordingly, the defendant was properly designated a level three sex offender.
RIVERA, J.P., BALKIN, DICKERSON and HINDS–RADIX, JJ., concur.